Royal College of Nursing v. Department of Health and Social Security [1981] 2 WLR 279

Key Point

  • This case shows the application of the mischief rule of statutory interpretation, which looks at the mischief (i.e. a defect in the law) that the statute was intended to cure so as to establish the intention of Parliament when enacting the statute

Facts

  • The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion.
  • Section 1(1) of the Abortion Act 1967 stated that no criminal offence was committed where the pregnancy was terminated by a ‘registered medical practitioner’ (i.e. a doctor).
  • When the 1967 Act was passed abortions could only be carried out surgically by a doctor, but as medical science progressed on, it became possible for abortion to be carried out by hormonal drugs which can be administered by a registered nurse
  • The Government sent out a circular that nurses could lawfully carry out such a  procedure under the supervision of a doctor
  • The Royal College of Nursing sought a declaration that the circular was incorrect and that it was unlawful for nurses to carry out such a procedure

Held (House of Lords)

  • It was lawful for nurses to carry out drug based abortion procedures under the supervision of doctors
  • The mischief rule was considered and the mischief considered by Parliament was the prevention of backstreet abortions and the drug based abortion procedure carried out by nurses fell within
  • Lord Wilberforce and Lord Edmund-Davies dissented as they preferred a more literal interpretation of section 1(1)

Lord Diplock

  • ‘Whatever may be the technical imperfections of its draftsmanship, however, its purpose in my view becomes clear if one starts by considering what was the state of the law relating to abortion before the passing of the Act, what was the mischief that required amendment, and in what respect was the existing law unclear.’: p. 825A
  • ‘My Lords, the wording and structure of the section are far from elegant, but the policy of the Act, it seems to me, is clear. There are two aspects to it: the first is to broaden the grounds upon which abortions may be lawfully obtained; the second is to ensure that the abortion is carried out with all proper skill and in hygienic conditions’: p. 827A
  • ‘What limitation on this exoneration is imposed by the qualifying phrase: “when a pregnancy is terminated by a registered medical practitioner”?…In other words, the doctor need not do everything with his own hands; the requirements of the subsection are satisfied when the treatment for termination of a pregnancy is one prescribed by a registered medical practitioner carried out in accordance with his directions and of which a registered medical practitioner remains in charge throughout.’: p. 829 – 830A

Lord Wilberforce (Dissenting)

  • ‘The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question “What would Parliament have done in this current case—not being one in contemplation—if the facts had been before it?” attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.’: p. 822

Commentary

  • The mischief rule, as established in by Lord Coke in Heydon’s Case [1584] EWHC Exch J36, asks the courts to look at the following when interpreting statute:
    1. What was the law prior to the Act?
    2. What was the mischief (problem) that needed to be remedied?
    3. What was the remedy that Parliament wanted to impose?
    4. What was the purpose behind the remedy?
  • It is a rule that goes beyond literal interpretation and looks at the underlying intention of Parliament behind the statute